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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to the award of
Arbitrator Paul D. Staudohar. (*) A grievance was
filed disputing the performance elements and standards used by the Agency in
evaluating the performance of certain employees. The Arbitrator concluded that
the matter was not grievable and, accordingly, did not address the merits of
the dispute.

The Union filed exceptions to the award under section 7122(a) of the
Federal Labor-Management Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The Agency did not file an opposition to the
Union's exceptions.

For the following reasons, we conclude that the Union's exceptions
provide no basis for finding the award deficient. Accordingly, we will deny the
exceptions.

II. Background and Arbitrator's Award

On January 22, 1990, the Union filed a grievance alleging that the
performance elements and standards for a group of planners and estimators did
not comply with law, rule, or regulation. When the matter was not resolved, it
was submitted to arbitration on the following issue: "[D]o the[] performance
appraisal elements and standards [for the planners and estimators in question]
violate law, rule or regulation, and if so what is the remedy[?]" Transcript at
8.

The Union contended before the Arbitrator that the performance elements
and standards were not objective, not reasonable, and not attainable. The Union
also maintained that the elements and standards did not accurately evaluate job
performance. The Union asserted that the elements and standards "were written
as absolute standards" and "were intentionally written to be as subjective as
possible. . . ." Id. at 10.

Article 27, section 12 of the parties' collective bargaining agreement
requires grievances to be filed in writing within 15 calendar days of the
occurrence giving rise to the grievance, or within 15 calendar days of the date
the grievant became aware of the occurrence prompting the complaint. The Union
acknowledged at the arbitration hearing that it first became aware of the
performance elements and standards in April 1989. However, the Union contended
that the occurrence giving rise to the grievance was the issuance of Newark
Air Force Station and American Federation of Government Employees, Local
2221, 30 FLRA 616 (1987) (Newark), in which the Authority held that
a grievance alleging that management violated applicable law when it
established a grievant's performance elements and standards--whether or not the
grievant had been evaluated against the elements and standards--was arbitrable
unless otherwise excluded from the scope of the parties' collective bargaining
agreement. The Union asserted that it became aware of Newark in January
1990, and contended that, as it filed its grievance within "approximately ten
days of becoming aware of that decision. . . [,]" the grievance was timely.
Transcript at 17. The Union also maintained that Newark established the
grievability of its claim.

The Arbitrator found that the issuance of Newark furnished the
Union with a basis for filing a grievance, and that the Union filed the
grievance "expeditiously" after learning of that decision. Id. at 41.
Consequently, the Arbitrator concluded that the grievance was timely filed.
However, the Arbitrator also concluded that the dispute was not grievable.

Specifically, the Arbitrator found that Article 27, section 4i of the
parties' collective bargaining agreement excluded, among other matters, "the
content of published Department of the Navy policy" from the negotiated
grievance procedure. Id. at 43. The Arbitrator found also that a
Department of the Navy Instruction stated that the "'contents of the individual
performance plan are neither grievable nor appealable.'" Id.
Accordingly, the Arbitrator concluded that the grievance was not grievable or
arbitrable, and he dismissed the grievance.

III. The Union's Exceptions

The Union contends that the grievance is grievable under section
7103(a)(9) of the Statute and arbitrable under section 7121(b)(3)(C). Noting
that the "list of matters that are excluded from the grievance proceedure [sic]
by the [collective bargaining] agreement is very explicit[,]" the Union asserts
that Article 27, section 4i of the agreement is only intended "to exclude from
the grievance proceedure [sic] those issues that the Department of the Navy
makes available to the Public. . . ." Exceptions at 2.

In support of its contention that the parties did not intend to exclude
grievances over performance standards from the scope of the negotiated
grievance procedure, the Union states that the effective date of the agreement
was "over a year prior to the date of [Newark,] the FLRA decision . . .
which . . . allowed such grievances." Id. Finally, the Union maintains
that the Arbitrator "erred when he ruled that the union grieved a matter that
was excluded by the parties['] agreement[,]" because the Union was "not
grieving the content of . . . Navy Policy[.]" Id. Instead, the Union
maintains that it was grieving only "the content of individual performance
appraisal system standards." Id.

IV. Analysis and Conclusions

We construe the Union's arguments concerning the Arbitrator's
interpretation of Article 27, section 4i of the parties' collective bargaining
agreement as assertions that the award fails to draw its essence from the
agreement. In order to establish that an award is deficient on the basis that
it does not draw its essence from the agreement, the party making the
allegation must demonstrate that the award: (1) cannot in any rational way be
derived from the agreement; or (2) is so unfounded in reason and fact, and so
unconnected with the wording and purpose of the agreement, as to manifest an
infidelity to the obligation of the arbitrator; or (3) evidences a manifest
disregard for the agreement; or (4) does not represent a plausible
interpretation of the agreement. U.S. Department of Veterans Affairs Medical
Center, Leavenworth, Kansas and American Federation of Government Employees,
Local 85, 34 FLRA 166, 168-69 (1990).

The Union's exceptions fail to establish that the Arbitrator's award
does not draw its essence from the parties' collective bargaining agreement.
The Arbitrator's award is based on his interpretation and application of
Article 27, section 4i of the parties' agreement. The Arbitrator found that the
agreement provided that "the content of published Department of the Navy
policy" was excluded from the negotiated grievance procedure. Transcript at 43.
Because he also found that an Agency policy, Office of Civilian Personnel
Management Instruction 12430.1, provided that the "'contents of the individual
performance plan are neither grievable nor appealable[,]'" the Arbitrator
concluded that the parties' agreement excluded grievances over performance
elements and standards. Id.

The Union furnishes no basis for concluding that the Arbitrator's
interpretation cannot in any rational way be drawn from the parties' agreement,
is unfounded in reason and fact and unconnected to the wording of the
agreement, evidences a manifest disregard for the agreement, or does not
represent a plausible interpretation of the agreement. In our view, the Union's
exceptions constitute nothing more than an attempt to relitigate this case
before the Authority and reflect mere disagreement with the Arbitrator's
interpretation and application of the parties' agreement. These contentions
provide no basis for finding the award deficient under section 7122(a) of the
Statute. See, for example, U.S. Department of the Air Force,
Air LogisticsCenter, Tinker Air Force Base, Oklahoma City, Oklahoma and
American Federation of Government Employees, Local 916, 36 FLRA 248
(1990).

V. Decision

The Union's exceptions are denied.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

*/ The Arbitrator issued an oral bench award. As the award
was transcribed, citations to the award, and other matters, consist of
citations to the transcript of the arbitration hearing. For a discussion of the
review of oral awards, see generally U.S. Small Business Administration and
American Federation of Government Employees, Council 228, Local 2532, 38
FLRA No. 41 (1990), slip op. at 18-19.